Baker v. Metropolitan Street Railway Company

• Decision Date: 07 March 1910
• Parties: AMY BAKER, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

126 S.W. 764

142 Mo.App. 354

AMY BAKER, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

March 7, 1910

Appeal from Jackson Circuit Court.--Hon. John G. Park, Judge.

AFFIRMED.

Judgment affirmed.

John H Lucas and C. S. Palmer for appellant.

(1) The peremptory instruction asked by defendant should have been given. Defendant's employee operating the car which injured plaintiff was acting outside the scope of his authority and could not create a liability against the defendant. Bequette v. Railroad, 86 Mo.App. 601; Sherman v. Railroad, 72 Mo. 62; Evans v Automobile Co., 121 Mo.App. 266; Daniel v Railroad, 48 S.C. 816, 136 N.C. 517; Brown v. Engineering Co., 43 N.E. 1118, 166 Mass. 75; Railroad v. Little, 67 Ohio St. 91, 65 N.E. 861; Jones v. Packet Co., 43 Mo.App. 398; Farber v. Railroad, 116 Mo. 81; Farber v. Railroad, 32 Mo.App. 378. (2) The verdict was excessive. Foley v. Traction Co., 55 A. 803; Railroad v. Wiswell, 68 Ill.App. 443, affirmed 48 N.W. 407; Vaughn v. Cement Co., 112 N.Y.S. 240.

Boyle & Howell for respondent.

(1) The plaintiff was entitled to recover and the court did not err in refusing to give defendant's peremptory instruction in the nature of a demurrer to the evidence. Williamson v. Transit Co., 202 Mo. 376; Ephland v. Railroad, 137 Mo. 187; Douglass v. Stevens, 18 Mo. 362; Perkins v. Railroad, 55 Mo. 201; 1 Shearman & Redfield, Negligence, sec. 148; Malacek v. Railroad, 55 Mo. 201; Berry v. Railroad, 124 Mo. 223; Eckhard v. Railroad, 190 Mo. 593. (2) The plaintiff having proved a prima-facie case, the trial court cannot, as a matter of law, say that it was overthrown. The plaintiff was entitled to have the judgment of the jury on the credibility of the witnesses produced by defendant and the value of their testimony. Boone v. Railroad, 20 Mo.App. 232; Gibson v. Zimmerman, 27 Mo.App. 967; Kenny v. Railroad, 80 Mo. 573; Gregory v. Chambers, 78 Mo. 298; Steamboat, City of Memphis, v. Mathews, 28 Mo. 248; Rundle v. Railroad, 65 Mo. 334; Bradford v. Rudolph, 45 Mo. 426; McAfee v. Ryan, 11 Mo. 365. (3) An emergency was created by the blockade or layout on the line, and Walker was led to believe, by the acts of the company in having him run cars over the same route on former occasions, that it was his duty to break the layout and take the car on to the end of the line. Ephland v. Railroad, 137 Mo. 157; 1 Shearman & Redfield, Negligence, sec. 148; Bequette v. Railroad, 86 Mo.App. 601.

OPINION

JOHNSON, J.

This suit is for damages for personal injuries. Plaintiff prevailed in the trial court and the cause is here on the appeal of defendant from a judgment of five thousand dollars.

The injury occurred about eight o'clock in the evening of February 27, 1908, at the corner of Eighteenth street and Jackson avenue in Kansas City. One of defendant's electric street car lines runs east on Eighteenth street to Jackson avenue where it turns south and continues on, some sixteen blocks, to its eastern terminus at Twenty-fourth and Brighton streets. Plaintiff, a seamstress fifty-one years old, went to the northwest corner of Eighteenth street and Jackson avenue, a regular stopping place, and waited for a westbound car, intending to board it as a passenger. While standing on the sidewalk, a car came north on Jackson avenue at such high speed that it jumped the track at the curve, ran into and injured plaintiff and collided with a telephone pole, killing the motorman. The principal defense is that the crew in charge of the car were not in the service of defendant at the time, but were trespassers, running the car without authority. The western terminus of the Jackson avenue line was at Eighteenth street and Quindaro boulevard in Kansas City, Kansas Car barns were operated by defendant at Eighteenth and Olive streets, which is eighteen blocks east of Jackson avenue. Word came by telephone to the barn that a disabled car was coming from the west and orders were given the night foreman to run out another car and have it in readiness to take the passengers of the disabled car and complete the run to the end of the line and back. It was the duty of the crew of the disabled car to take the substituted car, but for some reason not disclosed, they failed to do it. The car was run out by men employed in the barn; passengers were transferred, the car stood waiting until other eastbound cars arrived and were blockaded, and the belated passengers were showing impatience. In this situation, two of the barn men, who had run the car about a block east of the barn, concluded to break the blockade. One of them took the station of the motorman, the other that of the conductor and, without orders from the superintendent or foreman, ran the car to the end of the line. About five minutes after the car started, the foreman learned that the car had not gone out in charge of the crew of the disabled car. We quote from his cross-examination:

"Q. Why didn't you send this motorman and conductor that came off of this car that was turned into the barn on after this car, for them to bring it back . . . A. Well, I didn't think it was necessary. Q. Why? A. Because I didn't know but what maybe some of the train men had done that, had taken that car on out, wasn't working, was off duty. Q. You knew the situation then, didn't you? A. Well, I didn't know who had taken the car, really, at all. Q. In other words, you thought you would take your chances on whoever took the car getting it back, did you? . . . A. Well, I supposed whoever took the car away would bring it back. Anyway, I didn't suppose anybody would take the car who wasn't competent to run a car."

On the return trip, the car stopped at Twenty-fourth and Spruce streets and was boarded by a car repairer named Glenn, who had been working at the barn, had helped get out the car and evidently had come out for the express purpose of running the car back to the barn. He went at once to the motorman and said, "I will take the car in." The motorman replied "All right," and surrendered his post. Glenn then performed the duties of motorman in operating the car and when it jumped the track, he was killed in the wreck.

Defendant's witnesses testified that Glenn was not ordered to go for the car and that he acted without authority in what he did, but the man whom Glenn relieved as motorman and who was introduced as a witness by defendant, testified that Glenn not only was at the barn, but gave orders respecting the movement of the car. He testified:

"Q. Glenn was there in charge, wasn't he and told you to do that? A. I couldn't say that he was in charge. He was there and asked me if I would pull it over, which I did. Q. You did it in obedience to his instructions? A. I did it just simply for the interest of the company more than anything else. Q. Did you do it because he told you to? A. Well, probably I did. . . . Q. State whether or not he (Glenn) did, whether he was in charge of the men to start the crews out on the road. A. No, sir. I don't think so. . . . Q. I want to know if you know. A. Well, I couldn't say. Probably in the absence of the foreman he might have given orders. . . . Q. Do you know whether Glenn's day's work was done, whether he was off duty that night when he was talking to you? A. Why I don't believe it was. . . . Q. Was he a day man or a night man? A. A night man."

The two men who defendant claims ran the car without authority were not discharged from the service of the company. The rule is invoked by defendant that "to make the master liable for the tortious act of his servant, the act causing the injury must have been in the line of the servant's duty and...